In Re Kesler

OPINION FILED FEBRUARY 19, 1982.

IN RE JOHN A. KESLER, ATTORNEY, RESPONDENT.

Disciplinary proceeding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

This reciprocal disciplinary action under our Rule 763 (73 Ill.2d R. 763) was initiated by the Administrator of the Attorney Registration and Disciplinary Commission as a consequence of the disbarrment by the Indiana Supreme Court of respondent, John A. Kesler. The Hearing Board provided in our disciplinary system (73 Ill.2d Rules 751 through 771), apparently believing Rule 763 required discipline identical to that imposed by the sister State except in unusual circumstances not present here, recommended disbarrment. That recommendation was affirmed by the Review Board.

In relevant part Rule 763 states:

"If an attorney licensed to practice law in this State and another State is disciplined in the foreign State, he may be subjected to the same discipline in this State, to run concurrently with the discipline in the foreign State, upon proof of the order of the foreign State imposing the discipline.

The Administrator shall initiate proceedings under this Rule by filing a petition with the court, to which a certified copy of the order of the foreign State is attached, together with proof of service upon the attorney. Within 21 days after service of a copy of the petition upon him the attorney may request in writing a hearing on the petition. The hearing shall be held before the Hearing Board no less than 14 days after notice thereof is given to the attorney respondent and the Administrator. At the hearing the attorney may be heard only on the issues as to (1) whether or not the order of the foreign State was entered; (2) whether it applies to the attorney; (3) whether it remains in full force and effect; (4) whether the procedure in the foreign State resulting in the order was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process of law; and (5) whether the conduct of the attorney warrants substantially less discipline in this State."

It has been stipulated by the parties that in all significant respects the Indiana and Illinois disciplinary rules are identical. Respondent's sole contention is that substantially less discipline is warranted in Illinois than was imposed in Indiana.

We believe it apparent that Rule 763 does not require an automatic imposition in Illinois proceedings of the same discipline imposed by the State in which the misconduct occurred or in which prior disciplinary action had been taken. We think this intent appears from the language of the rule that "he [the attorney] may be subjected to the same discipline in this State" (emphasis added) and the provision in clause (5) permitting the respondent to urge that his conduct "warrants substantially less discipline in this State." Clearly clause (5) would be meaningless if the rule required imposition of the same discipline imposed in the other jurisdiction. That a particular sanction has resulted in the sister State from the same conduct is persuasive of the propriety of that sanction, but it is not binding, and our adjudicatory bodies may recommend, and we may impose, different discipline where analysis of the evidence compels such result. No other interpretation can be placed upon our opinion in In re Neff (1980), 83 Ill.2d 20, in which both the dismissal recommended by the Review Board and the action taken by us differed from the discipline recommended in Wisconsin, the originating State. This is not to indicate, of course, that the factual findings in the Indiana proceedings may now be disputed, for they, like the finding of guilt in a criminal case upon which subsequent disciplinary proceedings are based, are res judicata. (Neff; In re Cook (1977), 67 Ill.2d 26, 32; In re Andros (1976), 64 Ill.2d 419, 423.) We turn, then, to a consideration of the evidence before us.

Respondent is a native of Clark County, Illinois, where many of his relatives still reside. He attended law school in Indiana and was admitted to both the Indiana and Illinois bars in 1951. He practiced as a sole practitioner, principally in Terre Haute, Indiana, and five Illinois counties on or near the Indiana border, doing considerable trial work in personal injury, criminal and divorce cases. While he handled other matters, including some probate cases, he had very few estates as large as the Grammer estate, in the administration of which the misconduct occurred. He had served two terms as a representative in the Indiana legislature and had been an unsuccessful candidate for judge. At the time of the Indiana disciplinary hearings he was the Democratic candidate for the State senate in a heavily Democratic district. He attributed his defeat to publicity resulting from the fact that the hearing officer at the supposedly confidential disciplinary proceedings permitted the news media and photographers to "invade" the hearing room.

The misconduct facts as testified to in the Illinois proceedings are apparently substantially as testified to in the Indiana proceedings and are summarized in the opinion of the Supreme Court of Indiana, from which we quote:

"On April 2, 1973, the Respondent and John L. Smith (`Smith') were appointed CoExecutors of the Last Will of Elsie M. Grammer. Respondent was also the attorney for the Estate. The Co-Executors qualified, gave their joint and several surety bond in the sum of $75,000, and commenced the administration of the Estate. The will provided a $1,000 cash bequest to the testatrix's cousin, James Edward Smith, and the rest, residue and remainder was given and bequeathed to Smith. The estate consisted of real and personal property having an approximate value aggregating in excess of $100,000.

Smith desired a partial distribution of his share prior to the closing of the Estate in order to purchase a residence for himself and requested Respondent on several occasions to provide the partial distribution. The Respondent advised Smith in substance that no partial distributions would or could be made within six (6) months of the opening of the Estate because such was the period of time within which claims or a will contest could be filed. After six (6) months, Smith again requested the Respondent to permit a partial distribution to Smith of $45,000.

Respondent was concerned about his personal liability to taxing authorities in the event distributions to Smith rendered the Estate unable later to discharge then unforeseen tax liabilities and in the event a recovery from Smith could not be made. The Estate was solvent, but Respondent had information that the deceased had been `generous' to Smith before her death and the Respondent thought that additional tax liability to the Estate could arise from predeath transfers.

Respondent consulted a Terre Haute CPA for advice and was told that, conceivably, the Respondent could incur some personal responsibility by making a premature distribution before the receipt of final tax clearances. Respondent informed the CPA that Respondent was considering an arrangement whereunder a portion of the distribution would be placed with the Respondent in escrow, so that the Respondent would be held harmless if the Estate was financially unable to pay potential tax claims due to a deficiency in estate funds created by the advance distribution. The CPA advised the Respondent that the escrow proposal sounded like an excellent and proper way to handle the matter.

In October, 1973, Respondent and Smith again discussed the partial distribution desired by Smith. Following this discussion a `Petition for Partial Distribution' was filed in the Vigo Circuit ...

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